R, LH also known as J, LH v. J, MS

FCMC 14631 / 2017

[2020] HKFC 209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14631 OF 2017

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RULING
(Section 18 Declaration)

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Introduction

1.  This is an application by a Petitioner wife for a declaration pursuant to section 18(1)(b)(i) or section 18(1)(c) of the Matrimonial Proceedings and Property Ordinance, Cap 192. She also asks for an order that the ancillary relief proceedings be adjourned sine die. The wife is seeking the s.18 declaration because she wishes to obtain a decree absolute and to move on with her life. By the same token she is not willing to forego the possibility of receiving some form of financial support from the husband in the future and wishes therefore for the ancillary relief proceedings to be adjourned sine die.

Background

2.  The wife issued divorce proceedings on the 3 November 2017 on mild unreasonable behaviour grounds. Notwithstanding that, it soon became clear that this was a highly conflicted case, with numerous allegations being made against the husband of volatile and aggressive behaviours and concerns with respect to addiction issues that centred on both alcohol and drugs. There were also concerns with respect to the arrangements for the care of the parties only child, A, who was born on the XX August 2014 and was only 3 years old at the time.

3.  At that initial stage the husband, who is Australian, was working as a Sales Trader with a bank and he earnt a significant income. The wife, who is British, although a teacher by profession was not working at that time. I do not intend to go through the whole history of the litigation here, but suffice it to say that notwithstanding a very conflicted situation the parties were eventually able to come to terms with respect to the arrangements for A. This is set out in a consent order dated thee 26 October 2018. The parties agreed inter alia that the wife should permanently relocate to England, with A and that this should take place with immediate effect. A previous order had been made allowing the wife and A to relocate temporarily to the UK pending the trial, as the husband was unable to comply with his interim financial undertakings, which meant in turn that adequate housing could not be provided to the wife and child.  The parties also agreed that they would have joint custody, with care and control to the wife and reasonable access to the husband, which was partly defined in the order. It was also agreed as follows:

H.  AND UPON the Petitioner and the Respondent undertaking to the Court and to each other that upon the Respondent paying for the costs hereof, they (or either of them) shall use their best endeavors to apply for an Order in the jurisdiction of England and Wales and Australia respectively, which mirrors the Order herein (“The Mirror Order”).

I.    AND UPON the Respondent undertaking to the Court and the Petitioner that he shall return A to the jurisdiction of A’s place of habitual residence at the end of any period in which she shall spend time with the Respondent and in any event when called upon to do so by this Court. For the avoidance of doubt, the Hong Kong Court shall retain jurisdiction to so order.

J.    AND UPON the parties acknowledging and agreeing that A’s place of habitual residence for the purposes of the Hague Convention is the jurisdiction of England and Wales.

4.  There can therefore be no doubt that A’s place of habitual residence is now England and Wales. Paragraph I was drafted in such a way as to make it clear that notwithstanding the fact that at that time A was already living in England, that nevertheless the parties agreed that this court could make the order that was sought. There was also an agreement that a mirror order should be obtained from both England and Wales and Australia. Thus, it was understood, or should have been understood, that any difficulties with enforcement could only subsequently be dealt with by the courts in England and Wales and not by the courts in Hong Kong.

5.  The father complains now about enforcement of this order, but with respect it is not now possible for the Hong Kong courts to intervene further. Had the parties filed the mirror orders as agreed, then any potential enforcement issues would be easier to deal with. In any event any further applications with respect to A’s care can only be dealt with by the court’s in England and Wales, her place of habitual residence.

6.  It is the wife’s case that following this court order and her permanent relocation to England and Wales with A, that the husband only supported A spasmodically. She says that she has received no financial support from him at all since February 2019. Access has also been problematic, made even more difficult because it is not clear where the husband is currently living. He says that he is unemployed and initially he also said that he was living in Indonesia, (Bali) which is not a country that is a signatory to the Hague Convention on Child Abduction. As things stand, he has NOT provided an address for service for court purposes. It is then against this background that the wife’s application is considered. 

The law

7.  The sections in question states as follows:

18. Restrictions on decrees for dissolution， annulment or separation affecting children

(1)  The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied -  

(a)  that for the purposes of this section there are no children of the family to whom this section applies; or

(b)  that the only children who are or may be children of the family to whom this section applies are the children named in the order and that - 

(i)   arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii)  it is impracticable for the party or parties appearing before the court to make any such arrangements; or

(c)  that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b).

(2)  The court shall not make an order declaring that it is satisfied as mentioned in subsection (1)(c) unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.

8.  It is perhaps trite, but worth repeating that when considering a section 18 declaration the court is concerned not only with the actual arrangements for a child’s practical care (and the accompanying orders inter alia for custody, care and control and access etc as here), but also with the accompanying financial orders for the child’s maintenance. In some circumstances, it is possible for the court to accept an undertaking from a parent to provide financial support for a child in the future and on that premise to grant a section 18 declaration, notwithstanding the fact that a final agreement or a final court order following a trial on ancillary relief has not yet been obtained. In this instance the wife filed an undertaking dated the 20 August 2020 as follows:

1.   I will fully financially support the child of the family, namely AKJ, a girl born on XX August 2014, pending the Court making financial orders in relation to her, or indefinitely, in the event that no such orders are made. This undertaking is given without prejudice to my right to seek financial orders from the Court for unpaid child maintenance and future financial support for A from the Respondent.

9.  I accept that in giving this undertaking it is the clear that in reality the wife is wholly responsible for A from a financial perspective at present and that her chances of enforcing any order against the husband is currently rather slim, given the fact that his whereabouts is unknown. If he is living in Bali (and the wife says that this is a deliberate ploy on his part) then it will be virtually impossible for her to enforce any court order against him for A’s maintenance. If he is living in Melbourne, which is where he is from originally and where his family currently reside, then she may have a better chance, but it will still be an uphill battle. It will also be expensive.

Decision

10.  In such circumstances I have decided to grant the order that the wife seeks. I accept that it is not appropriate for the husband to hold the prospect of obtaining a section 18 declaration over the wife’s head in an attempt, seemingly, to force her to agree to his terms. He says that he wants a clean break financial settlement and that he will also pay some maintenance for A, although as I have said to date such maintenance has not actually been forthcoming. At the end of the day, if both parties own very little, then a clean break with both parties simply walking away, may be a fair and an appropriate outcome. However, in order for the wife to consider this, there needs to be full and frank financial disclosure from the husband as a basic pre requisite to either mediation or litigation. I am told that this has not taken place.

11.  Consequently, there shall be an order in terms of paragraphs 1 and 2 of the wife’s summons dated the 5 June 2020. I accept that arrangements for A’s welfare have been made, including her current schooling and living arrangements, and that they are the best that can be devised in the circumstances. (See s.18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap 192). I also accept the wife’s undertaking and I acknowledge that she intends to continue to wholly maintain A, in the absence of any form of financial support from the husband for his daughter.

Costs

12.  Costs of this application shall follow the event in the normal way. Thus, the husband shall pay the wife’s costs of and arising out of her summons dated the 5 June 2020 to be taxed on a party and party basis if not agreed.